Activities of Frank ENGEL related to 2011/0439(COD)

Proposal for a directive
Recital 17

(17) Other categories of services continue by their very nature to have a limited cross-border dimension, namely what are known as services to the person such as certain social, health and educational services. Those services are provided within a particular context that varies widely amongst Member States, due to different cultural traditions. A specific regime should therefore be established for contracts for those services, with a higher threshold of EUR 1 000 000. In the particular context of procurement in those sectors, services to the person with values below this threshold will typically not be of interest to providers from other Member States unless there are concrete indications to the contrary, such as Union financing for transborder projects. Contracts for services to the person above this threshold should be subject to Union- wide transparency. Given the importance of the cultural context and the sensitivity of those services, Member States should be given wide discretion to organise the choice of the service providers in the way they consider most appropriate. The rules of this directive take account of that imperative, imposing only observance of basic principles of transparency and equal treatment and making sure that contracting entities are able to apply specific quality criteria for the choice of service providers, such as the criteria set out in the voluntary European Quality Framework for Social Services of the European Union's Social Protection Committee26 . Member States and/or contracting entities remain free to provide those services themselves or to organise social services in a way that does not entail the conclusion of public contracts, for example through the mere financing of such services or by granting licences or authorisations to all economic operators meeting the conditions established beforehand by the contracting entity, without any limits or quotas, provided such a system ensures sufficient advertising and complies with the principles of transparency and non- discrimination.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 25

(25) Research and innovation, including eco-innovation and social innovation, are among the main drivers of future growth and have been put at the centre of the Europe 2020 strategy for smart, sustainable and inclusive growth. ~~Contracting ent~~Public authorities should make the best strategic use of public procurement to ~~spur~~drive innovation. Buying innovative goods and services plays a key role in improving the efficiency and quality of public services while addressing major societal challenges. It contributes to achieving best value for public money as well as wider economic, environmental and societal benefits in terms of generating new ideas, translating them into innovative products and services and ~~thus~~ promoting sustainable economic growth. An innovative procurement model is detailed in the Commission's communication on pre-commercial procurement1. This model promotes the take up in the procurement of research and development services which do not fall within the scope of this Directive. This model, which has been written into this Directive, is recognised and will be available for all contracting authorities to consider. This dDirective should however contribute to facilitating the public procurement of innovation more generally, and help Member States in achieving the Innovation Union targets. ~~A specific procurement procedure should therefore be provided for which~~Where a need for the development of an innovative product, service or works and the subsequent purchase of the resulting output cannot be met by solutions already available on the market, contracting authorities should have access to a specific procurement procedure in respect of contracts falling within the scope of this Directive. This new procedure should allows contracting ~~ent~~authorities to establish a ~~long-term~~n innovation partnership for the development and subsequent purchase of a new, innovative products, services or works, provided ithat these can be delivered to agreed performance levels and costs. The p~~artnership~~rocedure should be based on the rules applying to the competitive procedure with negotiations and contracts should be awarded on the sole basis of the most economically advantageous tender, which is the most suited to comparing tenders for innovative solutions. Whether the innovation partnership concerns a very large project or a smaller project, it should be structured in such as a way that it can provide the necessary ‘"market- pull’", incentivising the development of an innovative solution s without foreclosing the market. Contracting authorities should therefore not misuse innovation partnerships to prevent, restrict or distort competition. __________________ 1 COM (2007) 799 final: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Pre- commercial procurement: driving innovation to ensure sustainable high quality public services in Europe.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 28

(28) There is a strong trend emerging across Union public procurement markets towards the aggregation of demand by public purchasers, with a view to obtaining economies of scale, including lower prices and transaction costs, and to improving and professionalising procurement management. This can be achieved by concentrating purchases either by the number of contracting entities involved or by volume and value over time. However, the aggregation and centralisation of purchases should be carefully monitored in order to avoid excessive concentration of purchasing power and collusion, and to preserve transparency and competition, as well as market access opportunities for small and medium-sized enterprises. The Commission should provide guidance to Member States and contracting authorities on the required monitoring of aggregated and centralised purchases to avoid excessive concentration of purchasing power and collusion. Such guidance should be provided by way of implementing acts.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 44

(44) Where contracting entities ~~choose to~~ award a contract to the most economically advantageous tender, they must determine the award criteria on the basis of which they will assess tenders in order to identify which one offers the best value for money. The determination of those criteria depends on the subject-matter of the contract, since they must allow the level of performance offered by each tender to be assessed in the light of the subject-matter of the contract, as defined in the technical specifications, and the value for money of each tender to be measured. Furthermore, the chosen award criteria should not confer an unrestricted freedom of choice on the contracting entity and they should ensure the possibility of effective competition and be accompanied by requirements that allow the information provided by the tenderers to be effectively verified.

2012/09/03
Committee: IMCO

Proposal for a directive
Recital 46

(46) Those sector-specific measures must be complemented by an adaptation of the public procurement Directives empowering contracting entities to pursue the objectives of the Europe 2020 Strategy in their purchasing strategies. It should hence be made clear that contracting entities can determine the most economically advantageous tender and the lowest cost using a life-cycle costing approach, provided that the methodology to be used is established in an objective and non- discriminatory manner and accessible to all interested parties. The notion of life-cycle costing includes all costs over the life- cycle of a works, supplies or services, both their internal costs (such as research, development, production, use, maintenance and end-of- life disposal costs) and their external costs, provided they can be monetised and monitored. Common methodologies should be developed at the level of the Union for the calculation of life-cycle costs for specific categories of supplies or services; whenever such a methodology is developed its use should be made compulsory.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 2 – point 22

(22) ‘life cycle’ means all consecutive and/or interlinked stages, including research, development, production, transport, use and maintenance, throughout the existence of a product or a works or the provision of a service, from raw material acquisition or generation of resources to disposal, clearance and finalisation;

2012/09/03
Committee: IMCO

Proposal for a directive
Article 12 – point c

~~(c) EUR 1 000 000 for contracts for social and other specific services listed in Annex XVII.~~deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 14 a (new)

Article 14a Arrangements for public service contracts Contracts which have as their object services listed in Annex XVIIa, part A, shall be awarded in accordance with Articles 38 to 79. Contracts which have as their object services listed in Annex XVIIa, part B, shall be subject solely to Article 54 and Article 64(1). Contracts which have as their object services listed both in Annex XVIIa, part A, and in Annex XVIIa, part B, shall be awarded in accordance with Articles 38 to 79 where the value of the services listed in Annex XVIIa, part A, is greater than the value of the services listed in Annex XVIIa, part B. In other cases, contracts shall be awarded in accordance with Article 54 and Article 64(1).

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Jürgen CREUTZMANN

Proposal for a directive
Article 19 – paragraph 1 – point c

(c) financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments within the meaning of Directive 2004/39/EC of the European Parliament and of the Council3, central bank services and operations conducted with the European Financial Stability Facility, or transactions by the contracting authorities to raise money or capital;

2012/09/03
Committee: IMCO

Proposal for a directive
Article 21 – paragraph 1 – subparagraph 1 – point b

(b) that le~~ast 90 % of the activities of that legal person are carried out for the controlling contracting authority or for other legal persons controlled by that contracting authority~~gal person acts essentially for the controlling contracting authority or for other legal persons controlled by that contracting authority. That legal person shall be presumed to be acting essentially for the controlling contracting authority or for other legal persons controlled by that contracting authority if it carries out at least 90 % of its activities which are covered by the contract on behalf of that contracting authority or those legal persons;

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Jürgen CREUTZMANN

Proposal for a directive
Article 21 – paragraph 1 – subparagraph 1 – point c

(c) unless the laws of the Member States concerned provide otherwise, there is no private participation in any of the contr~~olled legal person~~acting authorities involved.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 21 – paragraph 3 – subparagraph 1 – point b

(b) that le~~ast 90 % of the activities of that legal person are carried out~~gal person acts essentially for the controlling contracting authority or for other legal persons controlled by that contracting authority. That legal person shall be presumed to be acting essentially for the controlling contracting authorit~~ies~~y or for other legal persons controlled by th~~e same contracting authoritie~~at contracting authority if it carries out at least 90 % of its activities which are covered by the contract on behalf of that contracting authority or those legal persons;

2012/09/03
Committee: IMCO

Proposal for a directive
Article 21 – paragraph 3 – subparagraph 1 – point c

(c) unless the laws of the Member States concerned provide otherwise, there is no private participation in any of the contr~~olled legal person~~acting authorities involved.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 21 – paragraph 3 – subparagraph 2 – point c

(c) the controlled legal person does not pursue any interests which are ~~distinct from~~in conflict with that of the public authorities affiliated to it;

2012/09/03
Committee: IMCO

Proposal for a directive
Article 21 – paragraph 4 – point e

(e) unless the laws of the Member States concerned provide otherwise, there is no private participation in any of the contracting authorities involved.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 32 – paragraph 1 - subparagraph 1 a (new)

Non-compliance with this obligation shall render the contracting entity liable.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 32 – paragraph 2

2. Unless otherwise provided in this Directive or in the national law concerning access to information, and without prejudice to the obligations relating to the advertising of awarded contracts and to the information to candidates and tenderers set out in Articles 64 and 69 of this directive the contracting entity shall not disclose information and details of tenders forwarded to it by economic operato~~rs which they have designated as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of tende~~rs.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 33 – paragraph 3 – subparagraph 3

To ensure the interoperability of technical formats as well as of process and messaging standards, especially in a cross- border context, the Commission sh~~all be empowered to adopt delegated acts in accordance with Article 98 to establish the mandatory use of certain~~ould recommend use of specific technical standards, at least with regard to the use of e-submission, electronic catalogues and means for electronic authentication.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 36 – paragraph 1 – subparagraph 2

The notion of conflict of interests shall at least cover any situation where the categories of persons referred to in paragraph 2 have, directly or indirectly, a ~~private~~common interest in the outcome of the procurement procedure, which may be perceived to impair the impartial and objective performance of their duties.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 36 – paragraph 1 – subparagraph 3

For the purposes of this Article, ~~‘private~~"common interests’' means any ~~family, emotional life, economic, political or other shared interests~~economic interest or family ties, shared with the candidates or the tenderers, including conflicting professional interests.

2012/09/03
Committee: IMCO

Malcolm HARBOUR, Edvard KOŽUŠNÍK, Frank ENGEL, Jürgen CREUTZMANN

Proposal for a directive
Article 43 – paragraph 1 – subparagraph 1

Member States ~~may~~shall provide that contracting entities may apply innovation partnerships as regulated in this Directive. ~~Member States may decide not to transpose into their national law innovation partnerships or to restrict the use of it to certain types of procurement.~~

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 1 – subparagraph 1

Member States ~~may~~shall provide that contracting entities may apply innovation partnerships as regulated in this Directive. ~~Member States may decide not to transpose into their national law innovation partnerships or to restrict the use of it to certain types of procurement.~~

2012/09/03
Committee: IMCO

Malcolm HARBOUR, Edvard KOŽUŠNÍK, Frank ENGEL, Jürgen CREUTZMANN

Proposal for a directive
Article 43 – paragraph 1 – subparagraph 2

In innovation partnerships, any economic operator may submit a request to participate in response to a c~~all for competition in accordance with points (b) and (c) of Article 39(2)~~ontract notice with a view to establishing a structured partnership for the development of an innovative product, service or works and the subsequent purchase of the resulting supplies, services or works, ~~provided that they correspond to the agreed performance levels and costs~~the need for which cannot be met by solutions already available on the market, provided that they correspond to the agreed performance levels and costs. The contract setting up the innovation partnership shall be awarded on the sole basis of the award criterion of the most economically advantageous tender in accordance with Article 76(1)(a).

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 2 - subparagraph 2 a (new) and 2 b (new)

Intellectual property rights shall be granted only for the purposes of enabling the contracting authority to build on the outcome of the preceding phases, in accordance with the aim of the partnership in the event of a change of contractor during the procedure, in order to restrict the use which may be made of those rights by the undertaking which has been replaced. Intellectual property rights clauses shall clearly define the rights and obligations of all parties.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 2

2. The partnership shall be structured in successive stages following the sequence of steps in the research and innovation process, ~~possibly up to~~which may include the manufacturing of the supply, or the provision of the services~~. It shall provide for~~ or the completion of the works. The partnership shall set intermediate targets to be attained by the partner and provide for ~~payment of the~~ remuneration in appropriate instalments. Based on those targets, the contracting entity ~~can~~may decide after each stage to terminate the partnership and launch a new procurement procedure for the remaining phases, provided that ~~it has acquired the relevant intellectual property rights~~the contracting entity has indicated in the procurement documents under which conditions it may make use of this discretion to terminate the partnership.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 3 – subparagraph 1

The contract shall be awarded ~~in accordance with the rules for a negotiated procedure with prior call for compe~~according to the provisions laid down in subparagraphs 1(a) to 1(h) below: (a) In the procurement documents, contracting authorities shall indicate which elements define the minimum requirements to be met. The indications shall be sufficiently precise so as to enable economic operators to identify the nature and scope of the procurement and decide whether to request to participate in the procedure. (b) The minimum time limit for receipt of requests to participate shall be 30 days from the date on which the contract notice is sent, or where a prior information notice is used as a means of calling for competition, 30 days from the date on which the invitation to confirm interests is sent. The minimum time limit for the receipt of initial tenders shall be 30 days from the date on which the invitation is sent. (c) Contracting authorities shall negotiate with tenderers the initial and all subsequent tenders submitted, to improve the content to ensure that these tenders better fulfil the award criteria specified in the procurement documents. (d) During the negotiations, contracting authorities shall ensure the equal treatment of all tenderers. To that end, they shall not provide information in a discriminatory manner which may give some tenderers an advantage over others. They shall take particular care to ensure that all tenderers, whose tenders have not been eliminated, are informed in writing of any changes to the technical specifications of other procurement documents other than those setting out the minimum requirements, providing sufficient time to allow such tenderers to modify and re-submit amended tenders following these changes. (e) In accordance with Article 32, contracting authorities shall not reveal to the other participants confidential information communicated by a candidate participating in the negotiation ~~set out in Article 42.~~ s without its agreement. Such agreement shall not take the form of a general waiver but shall be given with reference to the intended communication of specific information. (f) The minimum requirements and the award criteria shall not be subject to negotiations. (g) Once the deadline for submitting tenders has expired, and before proceeding to their examination, contracting authorities may specify a weighting attached to the subheadings of an award criterion defined in advance in accordance with Article 76(5), provided that: (i) the contract award criteria set out in the contract documents or the contract notice are unaltered; (ii) this does not include new elements which would have affected the preparation of the tenders; (iii) this does not give rise to discrimination against any one of the tenderers. (h) Innovation partnership procedures may take place in successive stages in order to reduce the number of tenders to be negotiated, by applying the award criteria specified in the contract notice, in the invitation to confirm interest or in the procurement documents. In the contract notice, the invitation to confirm interest or in the procurement documents, the contracting authority shall clearly indicate whether it will use this option.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 3 – subparagraph 2

In selecting candidates, contracting entities shall pay particular attention to criteria concerning the ~~tenderers‘ capacity and experience~~candidates' capacity in the field of research and development orand of developing innovative solutions. They may limit the number of suitable candidates to be invited to participate in the procedure in accordance with Article 72(2).

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 3 – subparagraph 3

Only those economic operators invited by the contracting entity following its assessment of the requested information may submit research and innovation projects, aimed at meeting the needs identified by the contracting entity that cannot be met by existing solutions. ~~The contract shall be awarded on the sole basis of the award criterion of the most economically advantageous tender in accordance with Article 76 (1)(a).~~

2012/09/03
Committee: IMCO

Proposal for a directive
Article 43 – paragraph 4 – subparagraph 1

The contracting entity shall ensure that the structure of the partnership and, in particular, the duration and value of the different phases shall reflect the degree of innovation of the proposed solution and the sequence of the research and innovation activities required for the development of an innovative solution not yet available on the market. The ~~value and duration of a contract for the purchase of the resulting supply~~estimated value of supplies, services or works shall ~~remain within appropriate limits, taking into account the need to recover the costs, including those incurred in developing an innovative solution, and to achieve an adequate profi~~not be disproportionate in relation to the investment required for their development.

2012/09/03
Committee: IMCO

Frank ENGEL, Constance LE GRIP

Proposal for a directive
Article 43 – paragraph 4 – subparagraph 2

~~Contracting entities shall not use innovation partnerships in such a way as to prevent, restrict or distort competition.~~deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 45 – paragraph 1 – subparagraph 3

The term of a framework agreement shall not exceed four years, save in ~~exceptional cases duly justified, in particular by the subject of the framework agreemen~~cases where it concerns work that will take longer than four years to carry out or where a longer period is justified by the need for economic operators to make investments for which the amortisation period is longer than four years or which are linked to the recruitment of suitable staff to perform the contract or the training of staff to perform the contract.

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Birgit COLLIN-LANGEN, Sabine VERHEYEN, Jürgen CREUTZMANN

Proposal for a directive
Article 47 – paragraph 1 – subparagraph 1

CWhere fully standardised supplies and services are involved, contracting entities may use electronic auctions in which new prices, revised downwards, and/or new values concerning certain elements of tenders are presented.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 53 – paragraph 2 – subparagraph 2

Such measures shall include the communication to the other candidates and tenderers of any relevant information exchanged in the context of or resulting from the involvement of the candidate or tenderer in the preparation of the procurement procedure and the fixing of adequate time limits for the receipt of tenders. Contracting authorities shall either be required (i) to clarify in their invitation to participate in a consultation what information will be considered relevant and thus may be shared with all potential bidders or (ii) to set out in detail the rights of and procedures available to consultation participants that allow them to protect confidential information. The candidate or tenderer concerned shall only be excluded from the procedure where there are no other means to ensure compliance with the duty to observe the principle of equal treatment.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 55 – paragraph 1 – subparagraph 1 – point a

(a) the requirements for the label ~~only concern characteristics which are linked to the subject-matter of the contract and~~ are appropriate to define the characteristics of the works, supplies or services that are the subject-matter of the contract;

2012/09/03
Committee: IMCO

Proposal for a directive
Article 55 – paragraph 1 – subparagraph 2 a (new)

It shall be the responsibility of the tenderer to prove equivalence with the label requested.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 58 – paragraph 1 – subparagraph 1

~~Contracting entities may take account of variants which are submitted by a tenderer and meet the minimum requirements specified by the contracting entities~~Tenderers may submit variants along with a basic proposal.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 58 – paragraph 1 – subparagraph 2

Contracting entities shall indicate in the specifications ~~whether or not they authorise variants and, if so,~~ the minimum requirements to be met by the variants and any specific requirements for their presentation. ~~Where variants are authorised, t~~They shall also ensure that the chosen award criteria can be usefully applied to variants meeting those minimum requirements as well as to conforming tenders which are not variants.

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Birgit COLLIN-LANGEN, Sabine VERHEYEN

Proposal for a directive
Article 58 – paragraph 2

2. In procedures for awarding supply or service contracts, contracting entities ~~that have authorised variants~~ shall not reject a variant on the sole ground that it would, where successful, lead either to a service contract rather than a supply contract or to a supply contract rather than a service contract.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 59 – paragraph 2

2. Contracting entities may, even where the possibility to tender for all lots has been indicated, limit the number of lots that may be awarded to a tenderer provided that the maximum number is stated in the contract notice or in the invitation to confirm interest. Contracting entities shall determine and indicate in the procurement documents the objective and non-discriminatory criteria or rules for awarding the different lots where the application of the chosen award criteria would result in the award to one tenderer of more lots than the maximum number.deleted

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Birgit COLLIN-LANGEN, Sabine VERHEYEN

Proposal for a directive
Article 59 – paragraph 3

3. Where more than one lot may be awarded to the same tenderer, contracting entities may provide that they will either award a contract per lot or one or more contracts, covering several or all lots. Contracting entities shall specify in the procurement documents whether they reserve the right to make such a choice and, if so, which lots may be grouped together under one contract. Contracting entities shall first determine the tenders fulfilling best the award criteria set out pursuant to Article 76 for each individual lot. They may award a contract for more than one lot to a tenderer that is not ranked first in respect of all individual lots covered by this contract, provided that the award criteria set out pursuant to Article 76 are better fulfilled with regard to all the lots covered by that contract. Contracting entities shall specify the methods they intend to use for such comparison in the procurement documents. Such methods shall be transparent, objective and non- discriminatory.deleted

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Birgit COLLIN-LANGEN, Sabine VERHEYEN

Proposal for a directive
Article 59 – paragraph 4

4. Contracting entities may require that all contractors coordinate under the direction of the economic operator to which a lot involving the coordination of the entire project or its relevant parts has been awarded.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 64 – paragraph 1 – subparagraph 1 a (new)

In the case of public contracts for services listed in Annex XVII B, the contracting authorities shall indicate in the notice whether they agree to its publication. For such services contracts the Commission shall draw up the rules for establishing statistical reports on the basis of such notices and for the publication of such reports in accordance with the procedure laid down in Article 100.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 76 – paragraph 1 – subparagraph 1 – introductory part

Without prejudice to national laws, regulations or administrative provisions on the remuneration of certain services, the criteriaon on which contracting ~~ent~~authorities shall base the award of public contracts shall be ~~one of the following:~~the most economically advantageous tender.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 76 – paragraph 1 – subparagraph 2

Costs may be assessed, at the choice of the contracting entity, on the basis of the price only or using a cost-effectiveness approach, such as a life-cycle costing approach, under the conditions set out in Article 77.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 76 – paragraph 2 – subparagraph 1

The most economically advantageous tender referred to in ~~point (a) of~~ paragraph 1) from the point of view of the contracting entity shall be identified on the basis of criteria linked to the subject-matter of the contract in question. Those criteria may include, in addition to the price or costs, other criteria linked to the subject-matter of the contract in question. Costs shall be assessed using a cost- effectiveness approach, such as a life- cycle costing approach, under the conditions set out in Article 77. Price shall be the decisive award criterion in the case of highly standardised products and services. Other criteria may include:

2012/09/03
Committee: IMCO

Proposal for a directive
Article 76 – paragraph 2 – subparagraph 2 – introductory part

~~Those criteria shall include in addition to the price or costs referred to in point (b) of paragraph 1, other criteria linked to the subject-matter of the contract in question, such as:~~deleted

2012/09/03
Committee: IMCO

Frank ENGEL, Constance LE GRIP

Proposal for a directive
Article 76 – paragraph 3

~~3. Member States may provide that the award of certain types of contracts shall be based on the most economically advantageous tender referred to in point (a) of paragraph 1 and in paragraph 2.~~deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 79 a (new)

Article 79a Tenders comprising products originating in third countries 1. This Article shall apply to tenders covering products originating in third countries with which the Union has not concluded, whether multilaterally or bilaterally, an agreement ensuring comparable and effective access for Union undertakings to the markets of those third countries. It shall be without prejudice to the obligations of the Union or its Member States in respect of third countries. 2. Any tender submitted for the award of a supply contract may be rejected where the proportion of the products originating in third countries, as determined in accordance with Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code[1], exceeds 50 % of the total value of the products constituting the tender. For the purposes of this Article, software used in telecommunications network equipment shall be regarded as products. 3. Subject to the second subparagraph, where two or more tenders are equivalent in the light of the contract award criteria defined in Article 76, preference shall be given to those tenders which may not be rejected pursuant to paragraph 2. The prices of those tenders shall be considered equivalent for the purposes of this Article, if the price difference does not exceed 3 %. However, a tender shall not be preferred to another pursuant to the first subparagraph where its acceptance would oblige the contracting entity to acquire equipment having technical characteristics different from those of existing equipment, resulting in incompatibility, technical difficulties in operation and maintenance, or disproportionate costs. 4. For the purposes of this Article, those third countries to which the benefit of the provisions of this Directive has been extended by a Council Decision in accordance with paragraph 1 shall not be taken into account for determining the proportion, referred to in paragraph 2, of products originating in third countries. 5. The Commission shall submit an annual report to the European Parliament and to the Council, commencing in the second half of the first year following the entry into force of this Directive, on progress made in multilateral or bilateral negotiations regarding access for Union undertakings to the markets of third countries in the fields covered by this Directive, on any result which such negotiations may have achieved, and on the implementation in practice of all the agreements which have been concluded. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may amend the provisions of this Article in the light of such developments. [1] OJ L 302, 19.10.1992, p. 1.

2012/09/03
Committee: IMCO

Frank ENGEL, Konstantinos POUPAKIS, Constance LE GRIP

Proposal for a directive
Article 79 b (new)

Article 79b Relations with third countries as regards works, supplies and service contracts 1. Member States shall inform the Commission of any general difficulties, in law or in fact, encountered and reported by their undertakings in securing the award of service contracts in third countries. 2. The Commission shall report to the European Parliament and to the Council before 31 December 2014, and periodically thereafter, on the opening up of service contracts in third countries and on progress in negotiations with these countries on this subject, particularly within the framework of the WTO. 3. The Commission shall endeavour, by approaching the third country concerned, to remedy any situation whereby it finds, on the basis either of the reports referred to in paragraph 2 or of other information, that, in the context of the award of service contracts, a third country: (a) does not grant Union undertakings effective access comparable to that granted by the Union to undertakings from that country; or (b) does not grant Union undertakings national treatment or the same competitive opportunities as are available to national undertakings; or (c) grants undertakings from other third countries more favourable treatment than Union undertakings. 4. Member States shall inform the Commission of any difficulties, in law or in fact, encountered and reported by their undertakings and which are due to the non-observance of the international social and environmental law provisions listed in Annex XIV when these undertakings have tried to secure the award of contracts in third countries. 5. In the circumstances referred to in paragraphs 3 and 4, the Commission may at any time propose that the Council decide to suspend or restrict, over a period to be laid down in the decision, the award of service contracts to: (a) undertakings governed by the law of the third country in question; (b) undertakings affiliated to the undertakings specified in point (a) and having their registered office in the Union but having no direct and effective link with the economy of a Member State; (c) undertakings submitting tenders which have as their subject-matter services originating in the third country in question. The Council shall act, by qualified majority, as soon as possible. The Commission may propose these measures on its own initiative or at the request of a Member State. 6. This Article shall be without prejudice to the commitments of the Union in relation to third countries ensuing from international agreements on public procurement, particularly within the framework of the WTO.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 81 – paragraph 2

2. Member States may provide that, at the request of the subcontractor and where the nature of the contract so allows, the contracting entity shall transfer due payments directly to the subcontractor for services, supplies or works provided to the main contractor. In such case, Member States shall put in place appropriate mechanisms permitting the main contractor to object to undue payments. The arrangements concerning that mode of payment shall be set out in the procurement documents.deleted

2012/09/03
Committee: IMCO

Frank ENGEL, Constance LE GRIP

Proposal for a directive
Article 81 – paragraph 3

3. Paragraphs 1 ~~and 2~~ shall be without prejudice to the question of the principal economic operator’s liability.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 82 – paragraph 4

4. Where the value of a modification can be expressed in monetary terms, the modification shall not be considered to be substantial within the meaning of paragraph 1, where its value does not exceed the thresholds set out in Article 12 and where it is below 15% of the price of the initial contract, provided that the modification does not alter the overall nature of the contract. Where several successive modifications are made, the value shall be assessed on the basis of the cumulative value of the successive modifications.

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Jürgen CREUTZMANN

Proposal for a directive
Article 83 – paragraph 1 – point c

(c) the Court of Justice of the European Union finds, in a procedure under Article 258 of the Treaty, that a Member State has failed to fulfil its obligations under the Treaties due to the fact that a contracting entity belonging to that Member State has awarded the contract in question without complying with its obligations under the Treaties and this Directive. A contractor who was unaware of the contracting authority’s breach of the law may claim compensation for the losses suffered as a result of the termination of the contract.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 84

Article 84 Award of contracts for social and other specific services Contracts for social and other specific services listed in Annex XVII shall be awarded in accordance with this Chapter where the value of the contracts is equal to or greater than the threshold indicated in Article 12(c).deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 85

Article 85 Publication of notices 1. Contracting entities intending to award a contract for the services referred to in Article 84 shall make known their intention by means of a contract notice. 2. Contracting entities that have awarded a contract for the services referred to in Article 84 shall make known the results by means of contract award notice. 3. The notices referred to in paragraphs 1 and 2 shall contain the information referred to in Annex XVIII in accordance with the standard model notices. The Commission shall establish the standard forms. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 100. 4. The notices referred to in paragraphs 1 and 2 shall be published in accordance with Article 65.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 86

Article 86 Principles of awarding contracts 1. Member States shall put in place appropriate procedures for the award of contracts subject to this Chapter, ensuring full compliance with the principles of transparency and equal treatment of economic operators and allowing contracting entities to take into account the specificities of the services in question. 2. Member States shall ensure that contracting entities may take into account the need to ensure quality, continuity, accessibility, availability and comprehensiveness of the services, the specific needs of different categories of users, the involvement and empowerment of users and innovation. Member States may also provide that the choice of the service provider shall not be made solely on the basis of the price for the provision of the service.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 1 – subparagraph 1

1. Member States shall ~~appoint a single independent body responsible for~~ensure the oversight and coordination of implementation activities ~~(hereinafter ‘the oversight body’). Member States shall inform the Commission of their designation~~.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 3 – subparagraph 1 – introductory part

3. The ~~oversight body~~competent authorities shall be responsible for the following tasks:

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 3 – subparagraph 3

~~Member States shall empower the oversight body to~~The competent authorities may seize the jurisdiction competent according to national law for the review of contracting entities’ decisions where it has detected a violation in the course of its monitoring and legal advising activity.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 4 – subparagraph 1

4. Without prejudice to the general procedures and working methods established by the Commission for its communications and contacts with Member States, the ~~oversight body~~competent authorities shall act as a specific contact point for the Commission when it monitors the application of Union law and the implementation of the budget from the Union on the basis of Article 17 of the Treaty on the European Union and Article 317 of the Treaty on the Functioning of the European Union. It shall report to the Commission any violation of this Directive in procurement procedures for the award of contracts directly or indirectly funded by the Union.

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 4 – subparagraph 2

The Commission may in particular refer to the oversight body the treatment of individual cases where the contract is not yet concluded or a review procedure can still be carried out. It may also entrust the oversight body with the monitoring activities necessary to ensure the implementation of the measures to which Member States are committed in order to remedy a violation of Union public procurement rules and principles identified by the Commission.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 4 – subparagraph 3

The Commission may require the oversight body to analyse alleged breaches to Union public procurement rules affecting projects co-financed by the budget of the Union. The Commission may entrust the oversight body to follow- up certain cases and to ensure that the appropriate consequences of breaches to Union public procurement rules affecting projects co-financed are taken by the competent national authorities which will be obliged to follow its instructions.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 5

5. The investigation and enforcement activities carried out by the ~~oversight body~~competent authorities to ensure that contracting entities’ decisions comply with this Directive and the general principles of the Treaty on the Functioning of the European Union shall not replace or prejudge the institutional role of the Commission as guardian of the Treaty. When the Commission decides to refer the treatment of an individual case, it shall also retain the right to intervene in accordance with the powers conferred to it by the Treaty.

2012/09/03
Committee: IMCO

Frank ENGEL, Philippe JUVIN

Proposal for a directive
Article 93 – paragraph 6

6. Contracting authorities shall transmit to the national oversight body the full text of all concluded contracts with a a value equal to or greater than (h) 1 000 000 EUR in the case of supply contracts or service contracts; (i) 10 000 000 EUR in the case of works contracts.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 6 – introductory part

6. Contracting authorities shall transmit to the ~~national oversight body~~competent authorities the full text of all concluded contracts with a value equal to or greater than

2012/09/03
Committee: IMCO

Frank ENGEL, Philippe JUVIN

Proposal for a directive
Article 93 – paragraph 7

7. Without prejudice to the national law concerning access to information, and in accordance with national and EU legislation on data protection, the oversight body shall, upon written request, give unrestricted and full direct access, free of charge, to the concluded contracts referred to in paragraph 6. Access to certain parts of the contracts may be refused where their disclosure would impede law enforcement or otherwise be contrary to the public interest, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them. Access to the parts that may be released shall be given within a reasonable delay and no later than 45 days from the date of the request. The applicants filing a request for access to a contract shall not need to show any direct or indirect interest related to that particular contract. The recipient of information should be allowed to make it public.deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Article 93 – paragraph 7 – subparagraph 1

7. Without prejudice to the national law concerning access to information, and in accordance with national and EU legislation on data protection, the ~~oversight body~~competent authorities shall, upon written request, give unrestricted and full direct access, free of charge, to the concluded contracts referred to in paragraph 6. Access to certain parts of the contracts may be refused where their disclosure would impede law enforcement or otherwise be contrary to the public interest, would harm the legitimate commercial interests of economic operators, public or private, or might prejudice fair competition between them.

2012/09/03
Committee: IMCO

Andreas SCHWAB, Frank ENGEL, Birgit COLLIN-LANGEN, Sabine VERHEYEN, Jürgen CREUTZMANN

Proposal for a directive
Article 95

Article 95deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Annex 3 – point D – paragraph 1

Rail ~~Freight~~ transport

2012/09/03
Committee: IMCO

Proposal for a directive
Annex 3 – point D – paragraph 3

~~Rail passenger transport None~~deleted

2012/09/03
Committee: IMCO

Proposal for a directive
Annex 17

Annex ~~XVII~~deleted.

2012/09/03
Committee: IMCO